Appeals Court Finds MPAA Not Liable for
Good Faith Exercise of DMCA Notice and Takedown Procedure

December 1, 2004. The U.S. Court of Appeals
(9thCir) issued its
opinion [13 pages in PDF] in Rossi v. MPAA, a state tort case in
which a web site operator (Rossi) alleged that a copyright holder (MPAA) wrongfully
served a DMCA notice and take down letter upon his internet service provider. The
District Court granted summary judgment to the MPAA. The Court of Appeals affirmed.
In particular, it held that the notice and take down provisions require only a subjective
good faith belief on the part of the copyright holder, and good faith can be present
even where the copyright holder is mistaken.

Michael Rossi operated a web site that stated that subscribers could
download full length movies. It also included graphics from some copyrighted
movies of the Motion Picture Association of
America (MPAA).

The MPAA did not actually download any copyrighted movies from Rossi's web
site. In litigation, Rossi argued that contrary to the claims in his web site,
no movies were available for download.

The MPAA followed the notice and take down procedure of the Digital
Millennium Copyright Act (DMCA), which procedure is codified at 17 U.S.C. §
512(c)(3)(A). It served its notice on Rossi and Rossi's internet service
provider (ISP). The ISP notified Rossi that it would terminate his service. He
then moved his web site to another ISP.

Nevertheless, Rossi filed a complaint in U.S. District Court (DHawaii) against
the MPAA and others alleging tortious interference with contractual relations, tortious
interference with prospective economic advantage, libel and defamation, and
intentional infliction of emotional distress. Federal jurisdiction was based
upon diversity of citizenship.

The District Court found that the MPAA had a good faith basis for its DMCA
notice, and that the notice and take down communication was privileged. It
granted summary judgment to the MPAA.

Rossi appealed. The Court of Appeals affirmed. It addressed at length the
meaning of the term "good faith belief".

Section 512 requires that a notice and take down notification must include,
among other things, "A statement that the complaining party has a good faith
belief that use of the material in the manner complained of is not authorized by
the copyright owner, its agent, or the law".

Rossi argued that this imposes upon the copyright claimant the duty
to conduct a reasonable investigation into the allegedly offending website. The Court
rejected this. It reasoned that "good faith belief" imposes no objective
standard or review. Rather, it creates a subjective standard. The Court stated that it
found no DMCA cases on this point. Hence, it relied on cases that construed "good
faith" requirements found in other statutes.

Then, the Court found that Rossi raised no genuine issue of material fact as
to whether the MPAA acted with good faith. And, since the MPAA's actions were justified,
all of Rossi's tort claims must fail.

The Court of Appeals concluded, "When considered in the context of
informative case authority, the statutory structure of § 512(c) supports the
conclusion that the ``good faith belief´´ requirement in § 512(c)(3)(A)(v)
encompasses a subjective, rather than objective, standard of conduct. Applying this
subjective good faith standard and viewing the record in the light most favorable to
Rossi reflects the absence of a genuine issue of material fact regarding MPAA’s violation
of the DMCA. Because the MPAA acted in compliance with the DMCA and was otherwise
justified in its response to Rossi's website, Rossi's tortious interference claims must
fail. Because the MPAA’s communications were privileged and were well within the bounds
of decency, his defamation and intentional infliction of emotional distress claims must
fail as well."

This case is Michael Rossi v. Motion Picture Association of America, Inc.,
et al., U.S. Court of Appeals for the 9th Circuit, No. 03-16034, an appeal from
the U.S. District Court for the District of Hawaii, D.C. No. CV-02-00239-BMK, Judge
Barry Kurran presiding. Judge Johnnie Rawlinson wrote the opinion of the Court of
Appeals, in which Judges Jerome Farris and John Noonan joined.